How to protect from defamation?

What to do when, where the social Web's concerned, the law protects sites more than users?

by Anne Collier

That's an unanswered question where the social Web's concerned. Social sites seem to have more protection from US law than their users have right now. A little-known section of the Communications Decency Act of 1996 (CDA) is what protects – rightfully, I think – Internet service providers and social-networking sites from liability for what's posted by users of their services, reports ConnectSafely.org co-director Larry Magid in his column in the San Jose Mercury News. It's a little like the way the phone company is not held liable for the nasty things people sometimes say to each other when using its service. [What's different about the social Web, of course – and what makes it much harder for victims or parents not to blame the service provider – is that what users say to or post about each other is public, so the damage can be amplified, reposted, searched for, and perpetuated.]

Anyway, US law so far protects the service provider. The only thing that protects users from each other is the customer service departments of the more responsible social sites, or service providers. For example, MySpace takes down harassing imposter profiles, once it goes through its own internal process of proving that someone's being victimized by someone else who set up a profile impersonating the victim. (It's not always easy to prove what people claim is happening online – sometimes people will say they're being victimized to get someone else kicked off the site, or kids pose as parents to get other kids' profiles taken down.) Not even sites' Terms of Service really protect users, according to a researcher I spoke with recently, who said that sites' Terms are more guidelines than enforced rules. In any case, whether or not Terms of Use are enforced depends on the site.

There are sites like JuicyCampus.com, where victimized users are just out of luck. Larry writes that, when he visited JuicyCampus recently, "the second most prominent post [he found on the home page] read: "paul [his last name, deleted here, was in the post] is a _______ piece of ____ [expletives deleted] who is a closet gay that gets drunk and fools around with other guys secretly." As mean and possibly libelous as that is, Larry writes, the site "can't be touched…. In theory, 'paul' could try to take action against the person who wrote the statement," but JuicyCampus would have to help him find who made the statement. US federal privacy law (different from CDA) prevents any site from revealing the identity of one user to another without a subpoena or other court-issued document. JuicyCampus, though, actually helps people who make such statements stay anonymous, Larry reports, by advising them to use a search engine to find services "that offer free IP-cloaking" (hiding the IP number associated with their computers for anyone trying to find them). Besides, speech like that seen in JuicyCampus, may be hateful and defaming, but it isn't necessarily criminal – it's more along the lines of cyberbullying (not that this doesn't make it less damaging).

With no real recourse, what are victims and their advocates (e.g., parents) to do? This is a discussion that the industry, consumer advocates, and legal experts need to have (or continue!). But all that's at the macro, societal, level. Obviously, there's much that can be done at the micro – household – level, as well as at school. We all need to be helping young people with whom we have influence to think just as critically, alertly, and ethically about how they behave online as they do offline. Nothing should ever take ethics out of the mix. The relatively lawless social Web demands ethical behavior more than anywhere.

The message to our children is: Anonymity and disinhibition change nothing. Not being able to see the other person you're talking to or about is all the more reason to think of that person as a fellow human being. I've never liked the term "cyberspace" because "cyber" suggests robotics. The participatory Web is not alien territory populated by robots – it's another place where human beings hang out.

Your thoughts on this are most welcome – post them here in our forum or email them to me via anne(at)netfamilynews.org.